Opinion
11-12-2015
The PEOPLE, etc., respondent, v. Artis MURPHY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Benjamin S. Litman of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Amanda Muros–Bishoff of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Benjamin S. Litman of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Amanda Muros–Bishoff of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered November 1, 2013, convicting him of criminal possession of marijuana in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review, since he either failed to object to the remarks at issue, objected on grounds other than those currently raised, or failed to request further curative relief or move for a mistrial when his objections were sustained or the court sua sponte gave curative instructions (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Philips, 120 A.D.3d 1266, 1268, 992 N.Y.S.2d 104 ; People v. Martin, 116 A.D.3d 981, 982, 983 N.Y.S.2d 813 ). In any event, the challenged remarks were fair comment on the evidence, fair response to the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), or were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Joubert, 125 A.D.3d 686, 999 N.Y.S.2d 552 ; People v. Rhodes, 115 A.D.3d 681, 682–683, 981 N.Y.S.2d 548 ; People v. Fields, 115 A.D.3d 673, 674, 981 N.Y.S.2d 538 ). To the extent that any prejudicial effect may have resulted from any of the challenged remarks, it was ameliorated by the court's instructions (see People v. Galloway, 54 N.Y.2d at 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Safian, 46 N.Y.2d 181, 190, 413 N.Y.S.2d 118, 385 N.E.2d 1046 ; People v. Jorgensen, 113 A.D.3d at 795, 978 N.Y.S.2d 361 ). Further, defense counsel's failure to object to the subject comments did not constitute ineffective assistance of counsel (see People v. Friel, 53 A.D.3d 667, 668, 862 N.Y.S.2d 105 ; People v. Rose, 47 A.D.3d 848, 849, 849 N.Y.S.2d 158 ).
The defendant's contention that the Supreme Court erred in failing to respond to a jury note before taking the verdict is unpreserved for appellate review (see CPL 470.05[2] ; People v. Alcide, 21 N.Y.3d 687, 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; People v. Ramirez, 15 N.Y.3d 824, 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 ; People v. Braithwaite, 126 A.D.3d 993, 996, 6 N.Y.S.3d 128 ; People v. Albanese, 45 A.D.3d 691, 692, 850 N.Y.S.2d 112 ). In any event, the fact that a verdict was reached before the court responded to the jury note implied that the jury had resolved the issue on its own (see People v. Braithwaite, 126 A.D.3d at 996, 6 N.Y.S.3d 128 ; People v. Sorrell, 108 A.D.3d 787, 793, 969 N.Y.S.2d 198 ; People v. Cornado, 60 A.D.3d 450, 451, 874 N.Y.S.2d 463 ; People v. Albanese, 45 A.D.3d at 692, 850 N.Y.S.2d 112 ). Further, defense counsel's failure to object to the court's procedure in taking the verdict without responding to the jury note did not constitute ineffective assistance of counsel (see People v. Brown, 17 N.Y.3d 742, 743–744, 929 N.Y.S.2d 12, 952 N.E.2d 1004 ; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ).